Citation Nr: 1505598
Decision Date: 02/06/15 Archive Date: 02/18/15
DOCKET NO. 11-29 791 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Whether there is new and material evidence to reopen the claim of entitlement to service connection for an upper respiratory condition.
2. Whether there is new and material evidence to reopen the claim of entitlement to service connection for residuals of hepatitis, to include liver damage and scarring.
3. Entitlement to service connection for residuals of hepatitis, to include liver damage and scarring.
4. Whether there is new and material evidence to reopen the claim of entitlement to service connection for coronary artery disease (heart disease).
5. Entitlement to service connection for coronary artery disease (heart disease).
REPRESENTATION
Appellant represented by: Jan Dils, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Barner, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1975 to September 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The case was certified to the Board by the RO in Winston-Salem, North Carolina.
The Veteran was afforded a Travel Board hearing in October 2014.
The issues of entitlement to service connection for residuals of hepatitis, to include liver damage, and for heart disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. At an October 2014 hearing before the Board, prior to the promulgation of a decision in the appeal, the appellant notified the VA that he wished to withdraw his appeal to the question whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an upper respiratory condition.
2. In a March 2005 rating decision, VA declined to reopen a claim of entitlement to service connection for hepatitis. Although the Veteran was notified of this determination and of his appellate rights, he did not appeal nor was new and material evidence received within the applicable time period.
3. In a March 2005 rating decision, VA denied a claim of entitlement to service connection for coronary artery disease. Although the Veteran was notified of this determination and of his appellate rights, he did not appeal nor was new and material evidence received within the applicable time period.
4. Evidence received since the March 2005 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claims for service connection and, raises a reasonable possibility of substantiating them.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal regarding the question whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an upper respiratory condition have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).
2. The March 2005 rating decision that declined to reopen a claim of entitlement to service connection for hepatitis, and which denied entitlement to service connection for coronary artery disease is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).
3. Evidence received since the March 2005 rating decision is new and material, and the claims of entitlement to service connection for coronary artery disease, and for hepatitis to include liver scarring are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection for Upper Respiratory Condition
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant. Id.
In October 2014, the appellant stated that he wished to withdraw his appeal to the Board concerning the issue of service connection for an upper respiratory condition. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal, and it is dismissed.
New and Material Evidence to reopen a claim of entitlement to service connection for hepatitis and its residuals, to include liver scarring.
In light of the determination to reopen the claim addressed herein, no further discussion of compliance with VA's duty to notify and assist is necessary.
In a March 1980 rating decision service connection for hepatitis was denied finding that there were no chronic residuals. A timely appeal was not perfected, and new and material evidence was not submitted in a timely manner. As such, the March 1980 rating decision is final. 38 U.S.C.A. § 7105.
While the Veteran later sought to reopen his claim of entitlement to service connection for hepatitis, a March 2005 rating decision declined to reopen the claim. This decision was not appealed, and new and material evidence was not submitted in a timely manner. Hence, the March 2005 rating decision is final. Id.
After reviewing all of the evidence of record available at the time of the March 2005 rating decision, in light of the evidence submitted since that decision, to include private medical evidence that shows that the Veteran is Hepatitis C antibody positive, and lay testimony relating the disorder to service, to include possibly that the disorder was incurred due to inservice air-gun inoculations, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for hepatitis. Accordingly, the claim is reopened.
New and material evidence to reopen a claim of entitlement to service connection for coronary artery disease (heart disease)
In light of the determination to reopen the claim addressed herein, no further discussion of compliance with VA's duty to notify and assist is necessary.
A March 2005 rating decision denied entitlement to service connection for coronary artery disease finding that there was no link between that disorder and the appellant's active duty service. This decision was not appealed, and new and material evidence was not submitted in a timely manner. Hence, the March 2005 rating decision is final. Id.
After reviewing all of the evidence of record available at the time of the March 2005 rating decision, which includes a record of hepatitis while in service, in light of the evidence submitted since that decision, to include hearing testimony that a doctor related the Veteran's heart disease to a weakened immune system, to include his hepatitis and liver related problems, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for coronary artery disease. Accordingly, the claim is reopened.
ORDER
The appeal to the question whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory condition is dismissed.
The claim of entitlement to service connection for hepatitis and its residuals to include liver scarring is reopened.
The claim of entitlement to service connection for coronary artery disease (heart disease) is reopened.
REMAND
Hepatitis
The Veterans claims entitlement to service connection for hepatitis and its residuals, to include liver scarring. He and his representative indicated that appellant was subjected to air-gun inoculations, which could have infected him with Hepatitis C.
The service treatment records show that the Veteran was treated for hepatitis for approximately two weeks while stationed in Augsburg, Germany in March and April 1977. At that time his symptoms included jaundice, yellow eyes, and dark urine. Laboratory studies showed that the hepatitis associated antigen that was negative. His liver was palpable. It is unclear from the record which form of hepatitis the Veteran had in service, but he was diagnosed with viral hepatitis. The appellant has intermittently referenced his inservice disorder as Hepatitis B or C.
Private treatment records show that in 2004 the Veteran denied symptoms of hepatitis. An April 2009 laboratory test showed that antibodies for Hepatitis A, B, were negative, but were positive for Hepatitis C. More specific testing was necessary to confirm the results.
Private treatment records from November 2010 show that the Veteran was positive for Hepatitis C antibody. The Veteran has reported that he is aware of scarring on his liver, and has been told by his cardiologist that as a result of hepatitis he has a weakened immune system.
At his October 2014 hearing the representative indicated that the Veteran had an examination in April 2010, although not on this specific claim. An examination report from that study, however, is not currently associated with his claim in VBMS or Virtual VA. The representative emphasized that although the report indicated that the Veteran used drugs in the 1970s, he had never used intravenous drugs, such that this was not a risk factor in regards to his hepatitis.
As such, a copy of the April 2010 examination report should be sought on remand. Further, given the theory that the appellant was infected with Hepatitis C when he received air-gun inoculations, the Board finds that the appellant should be afforded a VA examination to determine the nature and etiology of his claimed hepatitis and its residuals, to include possible liver scarring.
Finally, although the service treatment records contain the admittance and discharge notes to the hospital on accord of the Veteran's hepatitis, the records from the 13 days spent in the hospital are not associated with the claim. As such, and in light of the uncertainty as to which form of hepatitis the Veteran had in service, the Board requests that a search for the Veteran's records from the United States Army Hospital in Augsburg, Germany from March and April 1977 be requested and associated with the record.
Coronary artery disease (heart disease)
The Veteran claims entitlement to service connection for heart disease, to include secondary to hepatitis and residuals to include liver scarring. Private medical treatment records show that the Veteran has heart. At his hearing the Veteran indicated that his heart disease may have been caused or worsened by his hepatitis, which he reported weakened his immune system. He reported that his cardiologist had told him of this relationship. On remand the Board seeks any outstanding private treatment record pertaining to this matter.
As such, a VA opinion should be obtained to indicate the nature and etiology of the Veteran's heart disease to include consideration of whether it is at least as likely as not caused by or incurred in service. If the Veteran's heart disease is not related to service, but his hepatitis is related to service, then the examiner must indicate whether it is at least as likely as not that the heart disease was caused or permanently worsened by any hepatitis or its residuals.
Accordingly, the case is REMANDED for the following action:
1. Request and associate with the record (1) all outstanding VA treatment records, specifically any VA examination report from April 2010; (2) inpatient treatment records from the United States Army Hospital in Augsburg, Germany from March and April 1977; and (3) any private cardiology records relating the Veteran's heart disease to hepatitis or liver related problems. If any such records cannot be located specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that VA was unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond.
2. Thereafter, schedule the Veteran for a VA examination for his claimed hepatitis and its residuals to include liver scarring. The examination is to be conducted by a physician. Provide the physician access to the electronic record, to include Virtual VA and VBMS data bases. The physician examiner must report that the electronic record has been reviewed.
Following any necessary testing, the physician examiner must opine as to whether it is at least as likely as not that any currently diagnosed hepatitis, to include any residuals thereof, is related to service. The physician examiner must address the etiology of any diagnosed hepatitis as well as any associated residuals, to include whether it is at least as likely as not that hepatitis or any residuals thereof, is due to service. The examiner must discuss the Veteran's reports of treatment for hepatitis in service, as well as the theory that the appellant has hepatitis due to his inservice receipt of inoculations via an air gun.
The physician examiner must further address the nature and etiology of any diagnosed heart disease. The physician must address whether it is at least as likely as not that heart disease is related to or was incurred during the appellant's term of active duty service.
If the examiner has found that hepatitis or any associated residuals are related to service, THEN the examiner must address whether it is at least as likely as not that the Veteran's heart disease is (a) caused by or (b) permanently worsened by such hepatitis and its residuals.
A complete and adequate rationale is required for any and all opinions expressed. If the physician examiner determines that the requested opinions cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training.
3. The Veteran must be given adequate notice of the date and place of all scheduled examinations. In the event that the examination is missed, associate with the record a copy of all notification letters (and the address where the notice was sent), sent to the Veteran from the VA medical facility scheduling his examination. The Veteran is hereby advised that any failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2014).
4. After any requested examination has been completed, review the examination report to ensure complete compliance with the directives of this remand. The examination report should be returned to the examiner if there is any deficiency.
5. After completion of the above, readjudicate the claims. If any issue remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs